EEOC, DOL and DFEH Offer COVID-19 Guidance

COVID-19 Update

Federal agencies are providing guidance for employers struggling with the COVID-19 pandemic.

The Equal Employment Opportunity Commission (EEOC) released a statement about compliance with federal disability discrimination laws in light of the coronavirus. The California Department of Fair Employment and Housing (DFEH) issued guidance which mirrors the EEOC guidance. Finally, the Department of Labor’s (DOL) Wage and Hour Division (WHD) posted question-and-answer documents about the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFRCA).

As the COVID-19 pandemic continues, the EEOC and DOL are attempting to help employers through the uncertain situation.

  • EEOC.  In “What You Should Know About the ADA, the Rehabilitation Act and COVID-19,” the agency explained that while the Americans with Disabilities Act (ADA) and the Rehabilitation Act still apply, they do not interfere with or prevent employers from following the guidelines and suggestions made by the Centers for Disease Control and Prevention (CDC) or state/local public health authorities.

    The EEOC referred employers to a prior publication written during the H1N1 outbreak (Pandemic Preparedness in the Workplace and the Americans with Disabilities Act) for general tips on navigating the pandemic, but answered a series of questions it thought might be helpful with regard to the coronavirus.

    For example, the agency addressed how much information an employer may request from an employee who calls in sick during the pandemic (it is permissible to ask such employees if they are experiencing symptoms of COVID-19, such as fever, chills, cough and shortness of breath, the EEOC said) and whether the ADA allows employers to require employees to stay home if they have symptoms of COVID-19 (short answer: yes).

    The EEOC also said employees may screen applicants for symptoms of COVID-19, delay the start date of an applicant with symptoms of COVID-19, take an applicant’s temperature as part of a post-offer, pre-employment medical exam and withdraw a job offer for applicants with COVID-19-like symptoms who needs to start work immediately.

    The ADA also permits employers to require a doctor’s note certifying an employee’s fitness for duty before he or she returns to work, the agency noted, but cautioned that as a practical matter, doctors and other health care professionals may be too busy during and after the pandemic outbreak to provide such documentation.
  • DFEH. The California Department of Fair Employment and Housing (DFEH) also posted guidance on California’s Fair Employment and Housing Act.  Like the guidance from the EEOC, the DFEH has clarified that employers must comply with public health orders and should rely on the latest advice of the CDC.

    The DFEH guidance largely mirrors the guidance from the EEOC, reiterating both the privacy rights of individuals with respect to medical information, and the employer’s obligation to maintain a safe work place. For example, the DFEH included model notice language to provide other employees if someone in the workplace is suspected to have COVID-19.

    To read the DFEH guidance, click here.
  • DOL. Similarly, the DOL’s WHD attempted to provide guidance for employers with respect to the FLSA and the FMLA by answering questions in the context of the COVID-19 pandemic, as well as guidance on the newly enacted FFRCA.

    With respect to the FLSA, the document addressed issues such as “How many hours is an employer obligated to pay an hourly-paid employee who works a partial week because the employer’s business closed?” (employers are only required to pay employees for hours actually worked) and “May an employer encourage or require employees to telework (i.e., work from an alternative location such as home) as an infection control strategy?” (yes).

    As for the FMLA, an employee who is sick or whose family members are sick may be entitled to leave under the statute under certain circumstances, the WHD said. FMLA leave could be triggered “where complications arise that create a ‘serious health condition’ as defined by the FMLA,” the agency said.

    However, leave taken by an employee for the purpose of avoiding exposure to COVID-19 would not be protected under the FMLA, the WHD noted; nor would leave be provided for time off to care for healthy children who do not have school.

    Although the statute doesn’t provide for FMLA leave under such circumstances, the WHD repeatedly emphasized that employers “should consider flexible leave policies for their employees” during the COVID-19 pandemic.

    The agency also encouraged employers to prepare a plan of action specific to their workplace. The plan could permit the employer to send workers home, as long as the employer complies with laws prohibiting discrimination in the workplace on the basis of race, sex, age, color, religion, national origin, disability or veteran status.

    With respect to the FFRCA, the DOL announced that its effective date would be moved up by one day to April 1, 2020 (it was previously set to go into effect on April 2).The DOL also clarified a number of lingering questions—for instance, whether employers must provide leave under the statute or notice of the statute to furloughed or recently laid off employees under the statute (no) and whether employers may request documentation related to reasons for leave, such as a quarantine order (yes)—and provided guidance on how to count the number of employees to determine whether an employer is covered by the FFCRA.

    The DOL indicated that it would not provide regulations regarding the small business exemption (employers of fewer than 50) to the FFCRA until April. However, it clarified that small businesses do not need to apply for the exemption, and should not send documentation to the DOL, but these employers should still document the reasons why they qualify when the DOL releases the criteria.

    The DOL also provided model notices required for employers of less than 500 employees along with clarification about where and how the notice must be provided to employees.

    Finally, the DOL announced a 30-day non-enforcement period for the FFRCA for employers who make a “good faith” effort to comply.The DOL’s Field Assistance Bulletin subsequently clarified that the 30-day period began on the date of enactment (March 18) and will end on April 17.

It should also be noted that the Coronavirus Aid, Relief, and Economic Security (CARES) Act also would amend the FFCRA to make certain technical amendments. However, it would also expand the definition of “eligible employee” to include those who were laid off on or after March 1, 2020, and had worked for the employer for at least 30 of the last 60 calendar days prior to being laid off and were rehired by the employer.

To read the WHD’s FAQs on the FLSA, click here.

To read the WHD’s FAQs on the FMLA, click here.

To read the WHD’s FAQ on the FFRCA, click here.

To read WHD Field Assistance Bulletin No, 2020-1, click here.

Manatt’s Employment and Labor team continues to closely track the details of this new legislation and is available to provide guidance to employers on this and other COVID-19-related developments at both state and federal agencies. Please feel free to contact the team for additional information.

For regular updates on the major challenges companies are facing, please visit our COVID-19 resources page and subscribe for timely updates in your inbox here.

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